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Griffith v. State

Court of Appeals of Indiana

February 25, 2014

DEREK A. GRIFFITH, Appellant-Petitioner,
v.
STATE OF INDIANA, Appellee-Respondent

Editorial Note:

These opinions are not precedents and cannot be cited or relied upon unless used when establishing res judicata or collateral estoppel or in actions between the same party. Indiana Rules of Appellate Procedure 65(D).

APPEAL FROM THE WAYNE SUPERIOR COURT. The Honorable Charles K. Todd. Jr., Judge. Cause No. 89D01-1306-PC-15.

ATTORNEY FOR APPELLANT: MARK I. COX, The Mark I. Cox Law Office, Richmond, Indiana.

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, JAMES B. MARTIN, Deputy Attorney General, Indianapolis, Indiana.

KIRSCH, Judge. FRIEDLANDER, J., and BAILEY, J., concur.

OPINION

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge

Following his guilty plea to attempted burglary[1] as a Class C felony, and admission to being an habitual offender,[2] Derek A. Griffith appeals the trial court's order denying his petition for permission to file a belated appeal.

We affirm.

FACTS AND PROCEDURAL HISTORY

On September 15, 2010, while April Lahrman,[3] Griffith pleaded guilty pursuant to an open plea to attempted burglary as a Class C felony and admitted to being an habitual offender. The trial court sentenced Griffith to six years on the attempted burglary conviction enhanced by nine years for the habitual offender finding, for a total of fifteen years executed with the Indiana Department of Correction. Griffith did not file a notice of appeal after his sentencing. Instead, on January 28, 2013, Griffith filed a pro se petition for permission to file a belated appeal. In his petition, Griffith asserted that: (1) he " failed to file a timely notice of appeal" ; (2) the failure to timely file " was not due to the fault of the defendant" ; and (3) he has " been diligent in requesting permission to file a belated notice of appeal under . . . Post-Conviction Rule 2." Appellant's App . at 4.

The trial court held a hearing on the petition on May 9, 2013, and Griffith was a public defender. At the commencement of the hearing, the trial court reiterated the three things that Griffith had to prove. Tr . at 8. As to the first element, the trial court noted that it was " not contested that [Griffith] did not timely file [the notice of appeal]." Id. The trial court, however, requested evidence regarding why the failure to timely file the appeal was not Griffith's fault and how he had been diligent ...


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